Monthly Dose Employment Law 10/2025

Consequences of failure to notify or incorrect notification of mass redundancies

ECJ judgment of 30 October 2025, C-134/24 and C-402/24.

In its judgments of 30 October 2025 (‘Tomann’, C-134/24, and ‘Sewel’, C-402/24), the ECJ specified the requirements under EU law for the notification procedure in the event of mass redundancies and clarified that dismissals in the context of a mass redundancy can only take effect if a proper notification of collective redundancy has been made in accordance with Art. 3 of Directive 98/59/EC (Mass Redundancy Directive, MERL) and the 30-day period provided for in Article 4(1) MERL has subsequently expired. The sequence of consultation – notification – dismissal must be strictly adhered to. In the opinion of the ECJ, subsequent notification or the provision of missing information is excluded under EU law, as this would undermine the protective purpose of the MERL.

The ECJ also clarifies that the Directive does not specify any particular sanction, such as the nullity of the dismissal. The form of the sanctions is left to national law, as long as they are effective, proportionate and dissuasive and ensure the protective purpose of EU law. The previous case law of the BAG on nullity is therefore not required by EU law, but is permissible under EU law.

Facts of the case

Tomann case (C-134/24) – failure to notify

• In October 2020, an insolvency administrator terminated the employments of more than five employees of the insolvent company within 30 days without giving notice of mass redundancies in accordance with Section 17 KSchG. He mistakenly assumed that the threshold of 20 regular employees had not been reached.
• The Hamburg Labour Court and the Hamburg Regional Labour Court upheld an employee's action for unfair dismissal.
• In its ruling of 11 May 2023, the 6th Senate of the BAG found that the thresholds had been exceeded at the time of termination and that notification would have been necessary. In its ruling of 14 December 2023 (6 AZR 157/22), it announced its intention to deviate from the previous line taken by the 2nd Senate of BAG) (including in its ruling of 22 November 2012 (2 AZR 371/11)). It took the view that the absence of a notification did not necessarily lead to the invalidity of the dismissal, as the imposition of such a severe sanction was reserved for the legislature.
• Due to divergences from the previous case law of the Second Senate, a request for a preliminary ruling was made; subsequently, both senates submitted questions to the ECJ regarding the interpretation of the MERL (including the consequences of a failure to notify).
  

Sewel case (C-402/24) – incorrect notification

• In another insolvency proceeding, a mass redundancy notification was submitted, but its content was incorrect: in particular, it lacked information on the status and outcome of the consultation procedure as well as information that would enable the Employment Agency to examine possible remedial measures (Section 17 (3) KSchG).
• The Employment Agency nevertheless accepted the notification and did not object to it.
• Several employees brought an action for unfair dismissal. As the BAG had not yet ruled uniformly on whether a notification, accepted by the Employment Agency, with incorrect content is to be regarded as a notification within the meaning of the MERL and what sanctions are to be imposed for errors in the notification procedure, this case was also referred to the ECJ.
  

Legal background

• According to the previous case law of the (2nd Senate of the) BAG, a violation of this notification obligation – whether through failure to notify or incorrect notification – led to the invalidity of the dismissal due to a violation of Section 17 KSchG in conjunction with Section 134 of the German Civil Code (BGB). This legal consequence of nullity is neither expressly stipulated in the KSchG nor mandatory under EU law.
• Section 18 KSchG implements Article 4(1) MERL and stipulates that dismissals can only take effect one month after the notification has been received by the Employment Agency.
  

Reasons for the decision

• Notice period only begins with proper notification: The ECJ clarifies that dismissals in the context of a collective redundancy can only take effect after the expiry of the 30-day notice period provided for in Art. 4 (1) MERL. A mandatory prerequisite for the notice period to begin is proper notification to the competent national authority. Without such notification, the period does not commence and the redundancies cannot take effect.
• Mandatory sequence under EU law: Articles 2–4 of the MERL establish the following sequence: consultation – notification – dismissal. The notification must relate to ‘planned’ dismissals. It must therefore be made before the redundancies are announced.
• Subsequent rectification excluded under EU law: In both cases, the ECJ emphasises that subsequent notification or mere supplementation of incorrect information after the notice of termination has already been given is inadmissible under EU law. This would defeat the protective purpose of the MERL, in particular the guarantee of the 30-day period and the early involvement of the authority.
• Incorrect notification (Sewel) is equivalent to no notification: In the Sewel case, the ECJ ruled that a notification that does not contain essential information pursuant to Article 3(1) MERL does not constitute a proper notification. The mere acceptance of the notification by the employment agency does not constitute a cure. Here, too, the period specified in Article 4 MERL does not begin to run; the dismissals cannot take effect.
• National sanctions: The ECJ allows Member States leeway in the design of sanctions. However, in accordance with the general principle of effet utile under European law, they must be effective, proportionate and dissuasive, and ensure the protective purpose of EU law. The MERL does not prescribe the invalidity of the dismissal, but neither does it prohibit it. The ECJ considers the mere delayed effectiveness of the dismissal without further legal consequences to be insufficient.
  

Consequences for practice

The decisions of the ECJ, which are disappointing from a legal perspective, ultimately cement the invalidity of dismissals subject to mass redundancy notification requirements, meaning that such dismissals are only effective if a proper and complete mass redundancy notification has been submitted beforehand.

The ECJ's decisions raise awareness in practice of the need to continue to carry out the mass dismissal procedure with great care. Subsequent notification or supplementation of missing information is not permitted. Employers must therefore ensure that all information required under Section 17 (3) KSchG/Article 3 MERL – in particular regarding the consultation procedure – is provided in full, as the mere receipt of the notification by the Employment Agency does not have a remedial effect. The prescribed sequence of consultation – notification – termination must be strictly adhered to. In view of the considerable litigation and cost risks involved, for example due to extended periods of employment or delays in restructuring and insolvency proceedings, careful preparation, documentation and internal coordination of the entire process remains essential.

No discrimination in the case of fixed-term contracts based on retirement age limits – differentiation between public officials and employees in the case of allowances is permissible

BAG judgement of 31 July 2025, 6 AZR 18/25

In its judgement of 31 July 2025 (6 AZR 18/25), the BAG ruled that the protection against discrimination under Section 4 (2) of the German Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, TzBfG) does not apply to employment relationships that are limited to the attainment of the standard retirement age. Unequal treatment compared to public officials in the granting of hardship allowances is permissible, as public officials and employees covered by collective agreements belong to different occupational groups with their own standard systems. The principle of equal treatment under labour law also does not apply if the employer merely implements statutory or collective agreement requirements and does not create its own set of rules.

Facts

• The parties are in dispute over the payment of a hardship allowance for the plaintiff. The plaintiff has been employed by the defendant state since 1 November 2018 on the basis of an employment contract that refers to the collective agreement for the public service of the federal states (TV-L).
• Since December 2022, the plaintiff has been working in an observation group of the intelligence service, in which both employees and public officials work and perform similar tasks.
• The defendant state's Hardship Allowance Regulation (EZulV) regulates allowances for special hardships that are not taken into account in the job evaluation. According to Section 22 (3) Alt. 2 EZulV, police officers receive a monthly allowance of EUR 388 for working in observation groups; salaried employees such as the plaintiff do not receive this allowance.
• With her action, the plaintiff seeks payment of this allowance for the period from December 2022 to October 2024 and a declaration of a payment obligation for the future.
• She based her claim on the prohibition of discrimination against fixed-term employees (Section 4 (2) TzBfG, Article 3 (1) GG, Article 20 of the EU Charter of Fundamental Rights (GRC)) and the principle of equal treatment under labour law. The plaintiff argued that her employment relationship was limited to the standard retirement age and was therefore covered by EU law on protection against discrimination; public officials were to be considered comparable to permanent employees.
• The defendant state based the unequal treatment on structural differences between public officials and employment relationships and invoked collective bargaining autonomy.
  

Reasons for the decision

• The BAG rejected a claim for the hardship allowance.
• Interpretation of Section 4 (2) TzBfG: The protection afforded by Section 4 (2) TzBfG to fixed-term employees does not extend to employment relationships that end upon reaching the standard retirement age. Such employment relationships are considered ‘normal employment relationships’ and do not justify an increased need for protection as is the case with typical fixed-term contracts. This is not contradicted by the framework agreement of European Directive 1999/70/EC, as the TzBfG is specifically intended to prevent the abuse of fixed-term contracts.
• Relationship to Art. 20 GRC and Art. 3 (1) GG: Section 4 (2) TzBfG specifies the general principle of equality in Article 20 GRC; an additional review does not lead to a different result. Article 3 (1) GG requires equal treatment only in cases of essentially equal circumstances. Public officials and employees covered by collective agreements belong to different occupational groups with their own systems of norms; therefore, unequal treatment is objectively justified.
• Standards for the principle of equal treatment under labour law: The principle of equal treatment only applies to the employer's formative behaviour, not to the mere implementation of standards. If the employer merely implements statutory or collective agreement requirements, there is no entitlement to equal treatment. An allowance above the collective agreement rate for certain groups does not justify an obligation to extend this to other groups if this differentiation results from the application of different standards.
  

Consequences for practice

The judgement clarifies that employment relationships that are limited to the standard retirement age do not fall under the special protection against discrimination provided by Section 4 (2) TzBfG. Employers can therefore continue to agree on age limit regulations without having to fear additional equal treatment claims. Differences between public officials and employees covered by collective agreements are permissible, as they are based on different systems of standards; there is no obligation to harmonise. The principle of equal treatment under labour law only applies if the employer has discretion, not if it is merely implementing standards – this gives companies legal certainty when implementing statutory or collective agreement requirements. Overall, the ruling strengthens the importance of collective bargaining autonomy.

Protection of parents caring for disabled children and limits of reasonableness

ECJ judgement of 11 September 2025, C-38/24

The ECJ has clarified that the EU law prohibition of discrimination on grounds of disability also covers employees who are not themselves disabled but who are disadvantaged because they support their disabled child. The prohibition expressly includes indirect ‘discrimination by association’. At the same time, the ECJ affirms that employers have a duty to make reasonable accommodations within the meaning of Article 5 of Directive 2000/78/EC in favour of such carers, provided that this does not impose a disproportionate burden on the employer.

Facts

• The plaintiff was employed in Italy as a ‘station supervisor’ for an underground railway operator. The other station supervisors worked in shifts with varying working hours.
• The plaintiff cared for her severely disabled, fully incapacitated, minor son, who lived with her and had to attend a treatment programme at fixed times in the afternoon.
• The plaintiff repeatedly requested to be permanently assigned to a specific workplace with fixed working hours exclusively in the mornings in order to be able to fulfil her care responsibilities.
• The employer refused to permanently change the working conditions, but granted the plaintiff temporary relief (fixed place of work and more favourable working hours compared to the other station supervisors).
• The plaintiff brought an action for a declaration of discrimination and demanded, among other things, the permanent assignment of a morning workplace (8.30 a.m. to 3 p.m.), the elimination of the discrimination and damages. The lower courts dismissed the action, on the grounds, among other things, that there was no discrimination and that reasonable accommodation had already been provided.
• The Corte suprema di cassazione referred several questions to the ECJ concerning the interpretation of Directive 2000/78/EC in the light of the Charter of Fundamental Rights and the UN Convention on the Rights of Persons with Disabilities (UN CRPD), in particular on indirect discrimination against an employee who is a family carer for a disabled child and on the employer's obligation to make reasonable accommodations for that employee.
  

Reasons for the decision

• Indirect discrimination ‘by association’: The ECJ confirms that the prohibition of indirect discrimination on grounds of disability (Art. 2(2)(b) of Directive 2000/78/EC) also protects employees who are not themselves disabled but who care for a disabled child. A neutral rule on work organisation– such as a rigid shift schedule – may constitute indirect discrimination where it places parents caring for disabled children at a particular disadvantage and this disadvantage is linked to the child's disability. The ECJ builds on the Coleman ruling and explicitly extends EU anti-discrimination protection to indirect discrimination arising in a family context.
• Obligation to make reasonable accommodations for carers: The ECJ also affirms the employer's obligation to make reasonable accommodations (Art. 5 of Directive 2000/78/EC) for employees who care for a disabled child. This obligation is not limited to disabled employees, but also serves to prevent indirect discrimination against carers. Possible accommodations include adjustments to working hours, the allocation of a specific place of work, or other organisational measures, provided that they are necessary to ensure the care of the disabled child and to mitigate the discriminatory effects of working time arrangements.
• Broad interpretation in light of fundamental rights and the UN CRPD: According to the ECJ, Directive 2000/78/EC must be interpreted in the light of the Charter of Fundamental Rights of the European Union (in particular Articles 21, 24 and 26) and the UN Convention on the Rights of Persons with Disabilities. These legal instruments require enhanced protection for persons with disabilities and for those who play a significant role in supporting them. This results in an understanding required by EU law that does not limit protection against discrimination to disabled workers themselves, but extends it, in functional terms, to family carers where such care is a prerequisite for the disabled child to exercise their rights.
• Limits imposed by the principle of proportionality: The obligation to make reasonable accommodations is limited by the requirement of reasonableness. Employers are only required to make adjustments insofar as these do not represent a disproportionate burden. In particular, the employer’s operational structures, organisational effort, staffing levels and economic resources must be taken into account in the assessment. The concrete examination – for example, whether a permanent morning shift is feasible and reasonable in the specific undertaking – is the responsibility of the national court.
  

Consequences for practice

Going forward, employers must systematically review requests from employees who care for a disabled child to determine whether their working time or deployment arrangements place such employees at an indirect disadvantage, and provide them with reasonable accommodation, such as adjusted working hours or fixed locations, provided that this does not represent a disproportionate burden. This requires a careful and well-documented assessment on a case-by-case basis and sound justification if adjustments are to be rejected. Rigid shift or deployment models may need to be reconsidered to avoid the risk of discrimination.

Planning date decisive for applicability of the KSchG in the event of staff reductions

LAG Berlin-Brandenburg judgment of 25 July 2025, 12 SLa 640/25

The LAG Berlin-Brandenburg has ruled that the plaintiff's dismissal is invalid because the KSchG applies and the defendant was unable to demonstrate social justification. The decisive factor for the size of the business is not the number of employees at the time of dismissal, but the number at the time of the managerial decision to reduce staff, if this is based on a uniform plan. Since the remaining business had more than ten employees at the time of its formation, it was not a small business.

Facts of the case

• The parties are primarily in dispute over the validity of an ordinary dismissal. The plaintiff had been employed by the defendant as a design engineer since 17 May 2004. The defendant employs a total of approximately 49,000 people.
• On 1 July 2023, the business unit to which the plaintiff's company belonged was transferred to another company by way of a transfer of business.
• The plaintiff objected to the transfer of operations and, together with 37 other objectors, was assigned to a so-called residual operation. This residual operation was set up to gradually terminate the employment relationships of the objectors.
• Between August 2023 and February 2024, the plaintiff unsuccessfully applied for 41 internal positions.
• On 30 January 2024, the defendant gave notice of termination of the employment relationship with effect from 31 August 2024. At the time of termination, five employees were still employed in the residual business. The plaintiff brought an action for unfair dismissal and additionally requested continued employment. He argued that the dismissal was socially unjustified due to the applicability of the KSchG.
• The defendant argued that the remaining business was an independent small business with only five employees and that continued employment was not possible.
  

Reasons for the decision

• The Berlin-Brandenburg Regional Labour Court ruled that the termination was invalid.
• Applicability of the KSchG: The court clarified that the threshold regulation in Section 23 (1) KSchG does not refer solely to the number of employees at the time the notice of dismissal was received. According to the case law of the BAG, in the case of a uniformly planned reduction in personnel, the date of the business decision is decisive, not the later date of dismissal. The court emphasised that a different view could lead to circumvention of the protection against dismissal, with employers deliberately falling below the threshold by means of gradual reductions. In this case, there was a uniform business plan, as the remaining business was run solely with the aim of terminating the employment relationships of the objecting employees. Therefore, the number of employees exceeding ten at the time of the constitution of the remaining business in July 2023 must be taken into account, so that the KSchG applies.
• Social justification for dismissal: If the KSchG applies, a dismissal requires social justification. A dismissal for operational reasons is socially unjustified under Section 1 (2) sentence 2 KSchG if continued employment in a vacant position is possible. The employer has a graduated burden of proof (Section 1 (2) sentence 4 KSchG) to demonstrate that no other employment is possible. The defendant did not comply with this. The plaintiff had identified specific positions that were not yet filled at the time of termination by submitting 41 internal applications. The defendant should have specifically explained why a transfer to these positions was not possible. General assertions (‘no suitable position’) are not sufficient. The mere fact that the applications were unsuccessful does not replace the legal obligation to continue employment.
• The BAG rejected the defendant's appeal against the non-admission of the appeal in its decision of 17 October 2025 (2 AZN 464/25).
  

Consequences for practice

The ruling raises awareness among employers regarding the timing of restructuring with or without outsourcing. Where operationally feasible, employers should already take into account the date of the business decision to reduce staff when calculating the size of the business, if this is based on a uniform plan. This increases the risk that redundancies in supposed ‘residual businesses’ will also be subject to protection against dismissal.

Funeral eulogy as a joke in WhatsApp group does not justify dismissal

LAG Schleswig-Holstein judgment of 19 August 2025, 1 Sa 104/25

In its judgment, the LAG Schleswig-Holstein ruled on the validity of two dismissals without notice and, alternatively, ordinary dismissals in connection with a ‘funeral speech’ intended as a joke in a WhatsApp group.

Facts

• On 21 July 2024, during his break, the plaintiff, an employee in the logistics/patient transport department and a member of the plant fire brigade, created a video in which he announced the alleged death of a colleague in the style of a eulogy with mournful music (Ave Maria) playing in the background via the external loudspeakers of the plant fire brigade's equipment trolley. The video was shared in a WhatsApp group with a few colleagues, including the ‘affected’ person.
• The colleague affected by the eulogy reacted with amusement and did not feel offended; the other group members also perceived the video as a joke.
• The defendant employer only learned of the video on 4 October 2024, heard the plaintiff and colleagues and finally initiated the works council hearing on the termination without notice and, alternatively, ordinary termination.
• The works council objected to the dismissal in a letter dated 25 October 2024, but the employer nevertheless terminated the employment relationship without notice and, alternatively, with notice in a letter dated 30 October 2024. As the plaintiff rejected the dismissal due to the lack of an attached original power of attorney, the employer issued a new dismissal. The plaintiff filed an action for unfair dismissal.
• The employer also cited the alleged reparking of a fire engine, which had jeopardised its operational readiness; however, the works council had not been consulted on this matter.
• The labour court upheld the action; the employer lodged an appeal.
  

Reasons for the decision

• The Schleswig-Holstein Regional Labour Court ruled that there were no good grounds for termination without notice, particularly since the video was clearly recognisable as a tasteless ‘joke’ and there was no intention to cause harm to the colleague concerned.
• The plaintiff had violated his duty of consideration pursuant to Section 241 (2) of the German Civil Code (BGB), as the inaccurate report of a colleague's death was objectively capable of disrupting industrial peace.
• However, the recording was made exclusively in a hall, was not seen by anyone outside, and was only distributed within a small WhatsApp group with a maximum of five colleagues. Accordingly, there was no external impact and no possibility of damaging the employer's reputation.
• The video was recorded during a work break. The subsequent uploading during working hours did not constitute a significant breach of duty, as it only took a few seconds and it was not apparent that the plaintiff was neglecting his work duties as a result.
• The alleged re-parking of the fire engine could not be taken into account, as it constituted a separate ground for dismissal and was not communicated to the works council; it was therefore inadmissible to raise this issue during the proceedings.
• The plaintiff's breach of duty did not justify termination without notice, as a warning would have been necessary beforehand. A one-time, recognisably joking violation with no external impact did not make immediate termination of the employment relationship reasonable.
• The alternative ordinary terminations were also socially unjustified because a warning would likewise have been necessary.
• Due to the invalidity of all dismissals, the plaintiff was entitled to continued employment.
  

Consequences for practice

For employers, the decision shows that tasteless but clearly recognisable jokes in small, closed WhatsApp groups do not generally justify dismissal without prior warning, as long as there is no external impact or actual disruption to industrial peace. Even the use of company resources is not sufficient in the absence of a concrete operational impairment. The decision also once again highlights the need for employers to carefully and fully inform the works council about the relevant circumstances of the dismissal; allegations that have not been communicated cannot subsequently be relied upon in dismissal proceedings.